The Prosecutor of the International Criminal Court (ICC) recently announced her plans to conduct a preliminary examination on Philippine President Rodrigo Duterte’s war on drugs, which has allegedly resulted in thousands of extrajudicial executions of civilians. This process requires the Prosecutor to assess whether national proceedings exist with respect to potential cases that the Prosecutor may investigate after conducting the preliminary examination. Notably, a preliminary examination analyzes the situation as a whole and does not look into specific incidents and individuals that may be charged yet.

Duterte’s supporters argue that the Philippines has existing legislation and a functioning judicial system sufficient to satisfy complementarity. They rely on Republic Act 9851 (also titled the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) (RA 9851), to argue that the Philippines has an accountability mechanism which should suffice to bar ICC intervention. On the other hand, critics point to the presidential immunity provision in RA 9851 to argue that the ICC is not barred.

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Republic Act 8485 (Animal Welfare Act of 1998, Philippines), as amended and strengthened by House Bill 6893 of 2013--- violation means a maximum of P250,000 fine with a corresponding three-year jail term and a minimum of P30,000 fine and six months imprisonment

Both arguments are misplaced. The fact that a statutory mechanism exists is not the same as having a mechanism that actually works, which is what the principle of complementarity aims to achieve. Similarly, exploring the implications of presidential immunity presupposes that investigations that would satisfy complementarity are, in fact, already taking place. Both arguments do not answer the primordial question – are there, in fact, investigations being undertaken that would satisfy complementarity?

An absence of any investigation is enough reason for the ICC to step in. The question of genuine unwillingness will not arise if no investigations at all are being conducted in the first place. However, not all kinds of investigations are sufficient. This presupposes another question – what kind of investigation must take place, and against whom?

In its Policy Paper on Preliminary Examinations, the ICC Office of the Prosecutor requires national proceedings to be brought against the persons most responsible for the criminal acts that are being examined by it for potential cases. At present, however, no investigation, much less prosecution, has been conducted on any high-ranking official most responsible for planning and implementing Operation Tokhang, the Philippine National Police’s (PNP) official campaign through which the extrajudicial killings were allegedly committed.

The protective writs petitioned before the Philippine Supreme Court cannot be interpreted as national proceedings that can bar an ICC investigation. These protective writs are remedial measures for the families of the victims killed by Operation Tokhang, not efforts to hold high-ranking officials who planned and implemented Operation Tokhang criminally liable. The pending complaints filed by the drug war victims’ family members against police officers with the Office of the Ombudsman do not satisfy complementarity for the same reasons. The defendants here are low-ranking officers of the Manila Police District, not senior officials of the PNP. The investigative mandate of the Commission on Human Rights (CHR) may also not suffice. At best, the CHR can only recommend the filing of charges either to the Department of Justice (DOJ) or the Ombudsman; it has no prosecutorial power itself. Prosecutors are free to disregard CHR recommendations and make separate findings of their own.

Impeachment has been suggested to bar ICC intervention. Apart from the political impossibility of this happening at the moment, there are good reasons to believe that the process of impeachment is not enough to satisfy complementarity. The present 1987 Philippine Constitution allows for the removal of the President for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Although it may be argued that the drug-related extrajudicial killings constitute a violation of numerous rights provisions of the Constitution that could fall under “culpable violation of the Constitution”, impeachment only carries a political consequence and no criminal liability. This may not qualify as the kind of accountability envisioned in the Rome Statute.

Perhaps Colombia’s story can guide us. The ICC Prosecutor has made it clear that removing the possibility of criminal prosecution for the mass atrocities committed during the armed conflict between the Colombian government and the Revolutionary Armed Forces of Colombia could lead her to resume the preliminary examination of the Colombian situation. Criminal accountability was non-negotiable. This influenced both parties to the peace agreement to exclude amnesties and pardons for crimes against humanity and war crimes. Against this backdrop, the consequences of impeachment – mere removal from office – may not be enough to satisfy complementarity for the Philippines.

Although the ICC has yet to define how alternative mechanisms of accountability fit into the complementarity framework, the view that impeachment is insufficient to bar an ICC investigation is more consistent with the complementarity principle. Since the ICC seeks to fill the gap left open by states that do not genuinely investigate and criminally prosecute persons most responsible for mass atrocities, it follows that to satisfy complementarity, the state must allow for a mechanism that pushes for the same prosecutorial agenda.

If we only consider Duterte as the possible accused, then it is enough to justify ICC intervention due to the grant of presidential immunity under RA 9851. However, the ICC Prosecutor may also investigate other high-ranking officials involved in Operation Tokhang, such as PNP Chief Ronald “Bato” Dela Rosa. Notably, Operation Tokhang is implemented by police forces.

Dela Rosa is not protected by immunity under RA 9851. National proceedings against him may thus bar an ICC investigation. However, Philippine prosecutorial design may still allow ICC intervention. The mandate to prosecute crimes under RA 9851 is partly lodged with the DOJ. Institutionally, the DOJ is under the executive branch of the government, with the President as Chief Executive. The Justice Secretary is a presidential appointee and serves on behalf of the President. Under this set-up, it is highly unlikely that prosecution for any high-ranking official implementing Duterte’s war on drugs will ever prosper. If the President himself encourages this policy, then the idea of his representative (i.e., Justice Secretary) prosecuting the PNP Chief, the person responsible for implementing Duterte’s policy, is unlikely. Alternatively, the Ombudsman may theoretically prosecute Dela Rosa under RA 9851 because the drug killings resulting from the implementation of Operation Tokhang were committed during his command of the PNP. If this happens, it will eventually and separately call for an assessment of genuine willingness to prosecute.

Another problem is evidence. Because prosecutions will have to rely on evidence collected by the police – the very persons being investigated – prosecutors are stuck with no evidence in order to move forward with their case. Even the CHR has to rely on police cooperation to facilitate their human rights investigations. RA 9851 itself requires the CHR, the DOJ, and the PNP to work together in prosecuting and investigating the crimes covered by that law. Who can assist the CHR and the DOJ in their work when the target is the PNP Chief himself?

Viewed in this manner, the structure of the Philippine justice system paves the way for an ICC preliminary investigation to proceed. The roadmap on complementarity exposes deep structural problems in human rights accountability in the Philippines. Designing accountability mechanisms based on state-dependent models presents a paradox for prosecutions of high-ranking government officials because it is the state that is commonly held to account by human rights laws. This system may work when catching low-level public officials, but not for bigger catch. When the structure of justice for human rights abuses is circular, the ICC is likely to intervene with respect to crimes within its jurisdiction.

The ICC preliminary examination on the Philippines would be an uphill battle. Issues of cooperation complicate the Prosecutor’s work. The Philippine institutional set-up does not help. This raises the question: what can the ICC accomplish by opening a preliminary examination that may take years to conclude?

In an ideal world, the ICC would have no cases to investigate and no defendants to try either because of the absence of mass atrocities altogether or because all persons responsible for their commission can be genuinely prosecuted domestically. At the end of the day, we want a world in which governments are willing to make themselves accountable to the people. The ICC implicitly shares this mission by punishing persons most responsible for mass atrocities when states are unable or unwilling to do so, recognizing the reality that it is high-ranking government officials who enjoy the most impunity. This is especially true in the Philippines, where no one from the Marcos dictatorship has ever been held accountable to this day.

The principle of complementarity was embedded in the Rome Statute precisely to solve this kind of problem. The mandate of the ICC is thus normative and adjudicative. The adjudicative mandate is to stop impunity, however long it takes. The normative mandate, on the other hand, is more long-term – to push states to build a justice system where ICC intervention is not necessary. This is the reason why the ICC is and will remain important.

Jenny Domino is an LL.M. candidate at Harvard Law School. She served as a legal consultant at the Commission on Human Rights of the Philippines, where she helped redesign the human rights investigative framework for the Philippine “war on drugs”. She also previously interned at the International Criminal Court.